Poland - Regional Administrative Court in Warsaw, 7 October 2014, no IV SA/Wa 1074/14

Facts:

The applicant has lived in Poland since 2007. On 7 October 2013 the Polish Internal Security Agency applied to the Voivode  (first instance administrative authority) to issue a return decision on account that his further stay would pose a threat to state security, state defence, public order or interest of the state. The application was accompanied by evidence containing classified information.

During the proceedings the Voivode refused access to the case files and then issued a return decision.

The decision was subsequently upheld by the Head of the Office for Foreigners and the applicant was expelled from the territory of Poland. His legal representative submitted a complaint to the Regional Administrative Court, pointing out numerous infringements of international, EU and national law by not ensuring the right of defence and the right to an effective remedy.

Decision & reasoning:

The Court agreed with the administrative authority that in the present case legal conditions justifying a return decision were applicable.

The Court got acquainted with the classified case files and decided that issuing a return decision was justifiable because further stay would pose a threat to national security, defence, public order or interest of the state. It was confirmed by the concrete information provided by the specialised Internal Security agency. The Regional Administrative Court found that neither the applicant nor his legal representative can argue to the contrary because they cannot get acquainted with the case files, at the same time the Court cannot include full argumentation in the justification of this judgement because of the need to protect classified information.

The Court found that in this particular case one must ask whether  limiting the justification of the return decision is generally admissible and whether it was admissible in this concrete case. The answer to both questions is yes.

Notwithstanding the Court’s argumentation above, it concedes that there is a system of judicial control of administrative decisions in Poland and that limitations concerning the right of defence in administrative proceedings influence the essential procedural guarantees, which constitute fundamental components of the right to court. These rights are envisaged in the Constitution as well as in the Charter of Fundamental Rights and European Convention on Human Rights. In this regard the Court agrees with the legal arguments brought to its attention by the legal representative of the foreigner.

However, the Court stressed that the right to court, which includes the principle of contradictoriness and its essential element – the possibility to get acquainted with the information in possession of the authority or the court  – is not a value overriding other values protected by the national legal order. Such an understanding is reflected in EU law – Article 13 para 1 of the Returns Directive.

In the opinion of the Court it is not inconsistent with Article 47 of the Charter of Fundamental Rights, when read together with Article 52 para. 1. Similarly, it cannot be stated that Article 6 of the European Convention on Human Rights gives the right to get acquainted with all the information that courts are in possession of.

Disclosing concrete information gathered by a specialised agency, responsible for state security, can lead to the identification of the source of information. Thus, it can pose a threat to other persons or even exclude the possibility of further obtaining relevant information. The documentation of cases can also potentially disclose information on invigilation techniques. In this situation, taking into account the need to protect state security, there are limitations affecting the procedural rights of a person, but they are justifiable on account of public interest.

The Court finally advances that the present case does not concern fundamental issues such as protection of life or health, long-term deprivation of liberty or property rights. It concerns the possibility to limit the freedom of movement for a defined period (5 years) and for a defined area (Schengen area, while neither the foreigner nor his family are citizens of any of these countries). Of course such a ban can impact upon an applicant’s private or professional life, but it has to be weighed against the public interest – protection of state security. 

Outcome:

Case dismissed, the foreigner had been deported before the court heard the case.

Subsequent proceedings:

Submission of a cassation complaint by a legal representative, case pending before the Supreme Administrative Court.

Observations/comments:

The original judgement available at: http://orzeczenia.nsa.gov.pl/doc/7CDE1DC079